30-06-2015
2015
Master thesis University of Amsterdam Eleonor Boschman 6132634EXTRATERRITORIAL
APPLICATION OF THE
EUROPEAN CONVENTION ON
HUMAN RIGHTS DURING
ARMED CONFLICT
1
Extraterritorial application of
the European Convention on
Human Rights during armed
conflict
The right to life and the right to freedom and security
Eleonor Boschman 6132634
30-06-2015
2 Content
INTRODUCTION ... 3
1. EXTRATERRITORIAL JURISDICTION ... 6
1.1. JURISDICTION ... 6
1.2. EXTRATERRITORIAL JURISDICTION: TWO TYPES OF FACTUAL CIRCUMSTANCES ... 6
1.3. EFFECTIVE CONTROL OVER AN AREA ... 8
1.3.1. Direct control: military action ... 8
1.3.2. Indirect control: military, political and economic support ... 9
1.4. PERSONAL AUTHORITY AND CONTROL ... 10
1.4.1. Use of force: detention and arrest ... 10
1.4.2. Use of force: targeting individuals ... 12
1.5. EXERCISING PUBLIC POWERS ... 13
1.5.1. Personal or territorial ... 14
1.5.2. Extent of the public powers exercised ... 15
2. CONTENT OF THE EXTRATERRITORIAL OBLIGATIONS OF CONTRACTING STATES DURING ARMED CONFLICT ... 18
2.1. CONTENT OF THE RIGHTS AND OBLIGATIONS ... 18
2.1.1. The rights and freedoms under the Convention can be divided and tailored ... 18
2.1.2. Direct and immediate link ... 19
2.2. EXTRATERRITORIAL APPLICATION OF THE RIGHT TO LIFE AND THE RIGHT TO FREEDOM AND SECURITY ... 20
2.2.1. The right to life ... 20
2.2.2. The right to freedom and security ... 21
2.3. APPLICATION OF THE RIGHT TO LIFE AND THE RIGHT TO FREEDOM AND SECURITY DURING ARMED CONFLICT... 22
2.3.1. Derogation under article 15 ECHR ... 22
2.3.2. Jurisdiction of the court ... 23
3. RELATIONSHIP WITH INTERNATIONAL HUMANITARIAN LAW DURING ARMED CONFLICT ... 25
3.1 APPLICABILITY OF LEGAL FRAMEWORKS DURING ARMED CONFLICT ... 25
3.1.1 The right to life and targeted killings ... 26
3.1.2 The right to liberty and security and preventive detention ... 27
3.2. RELATIONSHIP BETWEEN IHL AND IHRL ... 28
3.2.1. Norm conflicts and complementarity ... 28
3.2.2. Conflicts and solutions ... 29
3 Introduction
On the 21st of April 2004 at around 2.12 a.m. at a vehicle checkpoint in the south-east of Iraq, outside the town of Ar Rumaytah an unknown car approached. The checkpoint was guarded by members of the Iraqi Civil Defence Corps (‘ICDC’). The car slowed down and turned, after which shots were fired from inside the car towards the personnel guarding the checkpoint and drove away. The checkpoint commander called for a patrol of six Dutch soldiers, including Lieutenant A., which arrived at the scene around 2.30 a.m.. Approximately fifteen minutes after the arrival of the Dutch soldiers, another car approached the checkpoint at high speed, hitting several barrels which had been set out to form the checkpoint, and still preceding towards the members of the ICDC and the Dutch soldiers. The members of the ICDC as well as Lieutenant A. fired shots towards the
advancing car, at which point the driver stopped the car. In the driver seat was Mr. Azhar Sabah Jaloud. He had been hit in several places, including in his chest, by the shots fired. After being removed from the car and attempts to administer first aid, Mr Jaloud died of his injuries. The relatives of Mr. Jaloud claimed that the Netherlands failed to meet its obligation to properly investigate the death of Jaloud and eventually addressed the European Court on Human Rights ('ECtHR') concerning the alleged violation of the right to life as guaranteed under the European Convention on Human Rights (‘ECHR’).1 The decision of the Court was communicated on the 20th of November 2014 and the Netherlands was held responsible for the violation of article 2 ECHR (the right to life), since the investigation towards the death of Jaloud had failed to meet the standards required by article 2 ECHR.2
The interference of states in an armed conflict occurring outside its own borders is not an exceptional phenomenon. Third party interference during armed conflict may occur for example in the context of peacekeeping (which was the reason for the Dutch soldiers presence in Iraq in the
Jaloud case), in the framework of a United Nations Security Council resolution, or in the combat
against terror such as the conducting of air strikes in for example Syria, Libya, Iraq and Afghanistan against terrorists groups active in that area. In such circumstances the probability of civil casualties is strongly present.3
The extraterritorial application of the Convention has been acknowledged several times, long before the decision of the ECtHR in the case of Jaloud, be it concerning different
circumstances. The question whether the rights and obligations under the ECHR can also apply
1 Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014, para 157; European Convention on the
Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (‘ECHR’), article 2.
2 Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014, para 227. 3
See in this regard: http://www.hrw.org/news/2008/09/07/afghanistan-civilian-deaths-airstrikes; http://www.hrw.org/news/2012/05/14/nato-investigate-civilian-deaths-libya;
http://www.independent.co.uk/news/world/middle-east/usled-air-strikes-kill-52-civilians-including-seven-children-while-targeting-isis-in-syria-10221164.html, last accessed: 3 May 2015.
4 extraterritorially is therefore not disputed. The conditions for the establishment of extraterritorial jurisdiction however, are still a subject of discussion.4 Hence, questions concerning the
circumstances and conditions of extraterritorial application of the Convention and the content and nature of those rights and obligations under the Convention when applied extraterritorially, are more controversial.
The Court has argued in the case of Jaloud that the contracting parties have to protect the rights that are relevant to the situation of that individual and that, therefore, the Convention rights can be ‘divided and tailored'.5 However, uncertainty remains as to what rights are protected during armed conflict outside a state's territory and regarding the specific situation in which protection has to be provided.6
Since the ECHR applies at all times and therefore in times of armed conflict as well, the legal framework of the ECHR may coincide with the legal framework of International
Humanitarian law (IHL). This overlap is most visible in case of the detention or killing of a person during armed conflict, which conduct is performed outside its own territory.7 In these circumstances the application of the two frameworks may lead to different conclusions concerning the legality of the conduct. The case of Al-Jedda shows how the Court deals with the two frameworks
overlapping, but rather than clarifying the relationship between the two frameworks, more question arise, since the decision does not address this relationship.8 The Court merely states that since IHL did not provide for an obligation for its contracting parties to detain a person in the above
circumstances, the Court could not ‘disapply’ the requirements under article 5 ECHR.9 Currently, there is a great discrepancy on the question how IHL and human rights law (IHRL) interacts with one another in these types of situations.10 It is important that these kind of
4
See for this discussion for example: O Ben-Naftali International Humanitarian Law and International Human Rights Law (Oxford University Press 2011); S Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’, (2012) 25-4 Leiden Journal of International Law, p. 857-884; J Cerone, 'Out of Bounds? Considering the Reach of International Human Rights Law, Center for Human Rights and Global Justice Working Paper (2006-5), available at:
http://www.chrgj.org/publications/docs/wp/WPS_NYU_CHRGJ_Cerone_Final.pdf (last accessed: 14 April 2014); F Coomans and M.T. Kamminga, (eds.) Extraterritorial Application of Human Rights Treaties (Intersentia 2004); M Milanovic Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011).
5 Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014, para. 139; See also Al-Skeini and others
v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 137.
6 C Mallory, 'European Court of Human Rights Al-Skeini and Others v. United Kingdom (application NO. 55721/07)
Judgement of 7 July 2011', (2012) 61-1 International and Comparative Law Quarterly, p. 301-312, p. 306-307 and 312.
7 See argumentation in Chapter 3.
8 Al-Jedda v. the United Kingdom (App No27021/08) ECtHR 7 July 2011, para. 107. 9
Ibid, para. 107 and 109-110.
10 See for example: M Milanovic, 'Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy,
(Oxford University Press 2011), (see Chapter 5: Norm Conflicts, International Humanitarian Law, and Human Rights Law); J Pejic, 'The European Court of Human Rights' Al-Jedda judgement: the oversight of international
5 questions are answered, in order to secure human rights during armed conflicts as well as maintain the goal of IHL, which is to humanise warfare by limiting human suffering caused by armed conflict.11
Considering the limited scope of this thesis and the fact that the overlap between IHL and IHRL is most visible in case of the detention or the killing of a person during armed conflict, which conduct is performed outside its own territory, this thesis’ main focus will be on the right to life and the right to freedom and security (article 2 and 5 ECHR respectively).The main question of this thesis is: what is the extend of extraterritorial application of human rights under the ECHR during armed conflict? In order to establish the extend of application the following sub-questions will be dealt with in this thesis: to what extend does the ECHR provide for extraterritorial jurisdiction? What is the content and nature of the extraterritorial obligations of contracting states during armed conflict? How do human rights under the ECHR, that are applicable extraterritorial, relate to IHL during armed conflict? In order to answer these questions, the first chapter will examine the conditions and limitations to extraterritorial jurisdiction of ECHR as stipulated by the case law of the Court. The second chapter will examine the content and nature of the extraterritorial obligations, the variables that may influence them and the content of the right to life and the right to freedom and security during armed conflict. The third chapter will examine the possible complications that can be induced by the extraterritorial application of human rights with respect to IHL.
humanitarian law', (2011) 93-883 International Review of the Red Cross, p. 837 – 851; A Gioia, 'The Role of the
European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict' in: O
Ben-Naftali, 'International Humanitarian Law and International Human Rights Law', (Oxford University Press 2011).
11 See for the purpose of international humanitarian law:
http://www.asser.nl/default.aspx?site_id=9&level1=13336&level2=13374&level3=13476 (last accessed: 14 April 2014).
6 1. Extraterritorial jurisdiction
In order to establish to what extend the ECHR is applicable extraterritorially during armed conflict, the first and foremost question that needs to be answered is to what extend the ECHR provides for extraterritorial jurisdiction. This chapter will focus on the meaning of (extraterritorial) jurisdiction and will establish the different factual circumstances and conditions recognized by the ECtHR in order to provide in extraterritorial jurisdiction under the Convention.
1.1. Jurisdiction
Jurisdiction is provided under article 1 ECHR and stipulates that 'The High Contracting Parties
shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.'12 In other words, a contracting party to the Convention has an obligation to secure the
rights and freedoms to everyone that falls ‘within their jurisdiction’. The article does not define the term jurisdiction. However, the notion has been addressed in the case law of the ECtHR.13
Jurisdiction can be interpreted as defining a specific kind of relationship between individuals and a state.14 It concerns a threshold criterion which establishes whether a state has obligations under the Convention, conditioning the applications of the ECHR on certain circumstances where a relationship exists between right-holders and state parties.15 Jurisdiction is primarily based on the territory of the Member States, but acts (or omissions) of those states can nevertheless be
performed- or produce effects outside their own territory. 16 These acts (or omissions) can under exceptional circumstances provide in extraterritorial jurisdiction.17
1.2. Extraterritorial jurisdiction: two types of factual circumstances
Two types of factual situations can be distinguished when examining the meaning of extraterritorial jurisdiction and the conditions that ought to be fulfilled in order to find a jurisdictional link between
12 European Convention on the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213
UNTS 221, Article 1 (‘ECHR’).
13 These cases will be discussed in further on in this chapter.
14 M Milanovic, 'Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, (Oxford
University Press 2011), p. 33; Issa v. Turkey, (App No 31821/96), ECtHR 16 November 2004, para. 71; S Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’, (2012) 25-4 Leiden Journal of International Law, p. 857-884, p. 859.
15 M Milanovic, 'Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, (Oxford
University Press 2011), p. 23; S Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’, (2012) 25-4 Leiden Journal of International Law, p. 857-884 p.860 and 866; Ilascu and Others v. Moldova and Russia (App No 48787/99) ECtHR 8 July 2004, para. 311.
16 Soering v. the United Kingdom (App No 14038/88) ECtHR, 7 July 1989, para. 86, Bankovic and Others v. Belgium
and 16 Other Contracting States (App no 52207/99) ECtHR 12 December 2001, para. 61 and 67, Ilascu and Others v. Moldava and Russia (App No 48787/99) ECtHR 8 July 2004, para. 312.
17 Bankovic and Others v. Belgium and 16 Other Contracting States (App no 52207/99) ECtHR 12 December 2001,
7 the extraterritorial act of a state and the violation of an individual’s right(s).18 The first type of factual situation occurs when a contracting state to the Convention exercises effective control over an area, the second when a contracting state exercises authority and control over a person.19 In these two types of situations the ECHR can be applicable extraterritorially. An overview of the conditions under the two types of factual situations has been established by the Court in the
Al-Skeini case.20
Firstly, the Court recognizes that effective control over an area can occur as a consequence of lawful or unlawful military action in an area outside its own territory, which control may be direct, through its own military forces or indirect through a subordinate local administration.21 In the latter case, the fact that the local administration survives as a result of the contracting parties military or other support is enough to establish such indirect control.22 Relevant in this regard is the strength of the state’s military presence in an area and the extent of its military, economic and political support for the local subordinate administration.23
Regarding the second factual situation, the authority and control over a person, the Court
distinguishes that a person may be brought into the jurisdiction of a state acting abroad by the use of force of its state agents.24 This principle has been applied for instance when persons were taken into custody.25 The Court emphasizes that the decisive factor for finding personal authority and control is the exercise of physical power and control over the person in question and therefore, does not solely depend on the control exercised over buildings, aircrafts or ships in which individuals were held.26 Secondly, the Court recognizes extraterritorial jurisdiction when a state exercises some or all of the public powers normally exercised by the Government of the territory.27
This means that the extraterritorial jurisdiction of a state depends on the strength of the military presence, the extent of support or the level of physical power and control over a person. In other words, the decisive factor can be found in the level of control exercised over an area, a subordinate administration or individuals abroad. However, this conclusion leaves unanswered what level of
18
Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 132-140.
19 Ibid, para. 133-140.
20 Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011; this case will be the starting
point of this chapter since it is the most recent decision concerning the subject of extraterritorial jurisdiction (except for the case of Jaloud). The case of Jaloud v. the Netherlands provides in a repetition of the criteria as established in Al-Skeini. Moreover, the Court literally quotes the criteria stipulated in Al-Skeini. Therefore, the Al-Skeini case is taken as a starting point in order to examine the criteria for the extraterritorial application of the ECHR. The case of Jaloud v. the Netherlands is relevant for examining the level of control over an area that is necessary in order for a state to exercise jurisdiction and will be further discussed in Chapter 1.4.
21 Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 138. 22 Ibid.
23 Ibid, para. 139. 24
Ibid, para. 136.
25 Al-Jedda v. the United Kingdom (App No27021/08) ECtHR 7 July 2011.
26 Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011, para 136. 27 Ibid.
8 control is necessary in order for an jurisdictional link to arise. In addition, it leaves unclear what the relationship is between the conditions set forth above. In order to examine this relationship and the level of control necessary to provide in a jurisdictional link, the conditions will be examined
separately in the following subchapters, divided under the relevant factual situation. This thesis will examine the public powers argument separately, even though the Court in Al-Skeini linked the principle to personal authority and control.
1.3. Effective control over an area
As stated above, effective control over an area is conditioned on the military action of a state outside its borders, which can be exercised directly or indirectly. The following subchapter will examine these two types of military action in order to provide their relationship towards each other and the level of control that is necessary in order to provide in a jurisdictional link.28
1.3.1. Direct control: military action
One of the first conditions recognized by the ECtHR which can result in a state having effective control over an area, is the exercising of military action in the territory of another state.29 The
Loizidou case is relevant in this regard.30
The applicant was a Cypriot national who was prevented by the Turkish military forces to return to and enjoy her property, which was located in an area in Cyprus that was occupied by the Turkish military forces.31 The question concerned whether the conduct of Turkish military forces in preventing a person to return to and enjoy her property fell within Turkey's jurisdiction, even though the conduct was committed outside Turkey's territory. The exercise of overall control over the northern area in Cyprus by Turkey was found to be the result of military action (whether lawful
28 Given the limited extend of this thesis, the difference between the use of the term ‘effective control’ by the ECtHR
and the term ‘effective overall control’ by the International Court of Justice and their relationship towards each other will not be examined or discussed. This thesis will merely examine the meaning of effective control as established by the ECtHR. For the current debate on this subject see for example: R Wilde ‘Human Rights Beyond Borders at the World Court: The Significance of the International Court of Juctice’s Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties’ (2013) Chinese Journal of International law, p. 639-677; J Lett, ‘The Age of Interventionism: The Extraterritorial Reach of the European Convention on Human Rights’ in R Arnold & G A Knoops ‘Practice and Policies of Modern Peace Support Operations under International
Law’(2006).
29
Loizidou v. Turkey (App no. 15318/89) ECtHR 23 March 1995; Cyprus v. Turkey (App No 25781/94) ECtHR 10 May 2001; Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011.
30 Loizidou v. Turkey (App no. 15318/89) ECtHR 23 March 1995; Cyprus v. Turkey (App No 25781/94) ECtHR 10
May 2001; This case does not concern extraterritorial jurisdiction outside the territory of the contracting states of the ECHR (Cyprus is and was at the time a member of the Convention) however, the case is highly important for the establishment of the criteria to extraterritorial jurisdiction within the meaning of article 1 ECHR, the same applies to the decision in Cyprus v. Turkey (FN 32).
9 or unlawful).32 The Court based its conclusion on the fact that the 'obligation to secure, in such an
area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through subordinate local administration'.33
Since the Turkish government had already acknowledged that the loss of control over the property by the applicant was a result of the Turkish occupation in that area and the establishment of the Turkish Republic of Northern Cyprus (TRNC) which was supported by Turkish troops,
extraterritorial jurisdiction could be established.34
In the case of Cyprus v. Turkey, the Court adopted the conclusion of the Court in Loizidou v.
Turkey concerning the effective control of Turkey over the area in Northern Cyprus, since it was
already established in this case that Turkey exercised effective control over that area by virtue of the Turkish occupation and support towards the local administration of Northern Cyprus.35 But where the Court in Loizidou based jurisdiction on the military control in that area, the Court in this case merely stated that: 'any other finding would result in a regrettable vacuum in the system of human
rights protection in the territory in question by removing from individuals there the benefit of the Convention's fundamental safeguards'.36 This argument is however not relevant to the application of the ECHR in a territory outside the territory of the contracting parties to the convention.37
The effective control that Turkey exercised over the northern part of Cyprus was therefore established through the conduct of the Turkish military forces in that area. The level of control Turkey exercised in the area, is somewhat more difficult to assess, since Turkey had already
acknowledged that the loss of control of the property by the applicant was a result from the Turkish occupation in that area and the establishment of the TRNC, but includes at least the occupation of an area.
1.3.2. Indirect control: military, political and economic support
Effective control over an area can also be the result of a state indirectly controlling an area, through the support of the local subordinate administration. The extent of support that a state provides a subordinate administration is sufficient when that administration survives due to the support of this state.38 In the case of Ilascu, this condition has been applied to Moldavian citizens which were
32 Ibid, para. 62. 33 Ibid.
34
Ibid, para. 63.
35 Cyprus v. Turkey (App No 25781/94) ECtHR 10 May 2001, para. 77. 36 Ibid, para. 78.
37 This conclusion is linked to the fact that, since Cyprus is a member state to the ECHR, the Convention would in
‘normal circumstances’ have provided in the protection of human rights but, due to the control of the TRNC in the northern part of Cyprus, this protection could not be guaranteed by Cyprus at that time. The argument is therefore not applicable in circumstances that a state acts on the territory of a state that is not a contracting party to the ECHR.
10 detained in the Transniestrian part of Moldavia, which proclaimed its independence in 1991, called the Moldavian Republic of Transniestria (‘MRT’).39 The Court argued, concerning the principle that jurisdiction is primarily based on territoriality that: ‘This presumption may be limited in exceptional
circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (…) acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned’.40
In its line of argumentation, the Court also refers to the Loizidou case and reaffirms that the
jurisdictional link can be established where a state exercises control over an area outside its national territory through military action (whether lawful or unlawful) in which case the control can be exercised directly through its armed forces or through a subordinate local administration.41 The Court acknowledges that it would not be necessary to determine whether a contracting party actually exercises detailed control over the policies and actions of the authorities in the territory concerned.42 The Court found that an uninterrupted link of responsibility over the applicants fate could be found since Russia exercised effective control over the area. The effective control resulted from the Russian military, economical, financial and political support through which the MRT could survive.43 Effective control over an area can therefore be the result of military, economic or political support of a local subordinate administration, as long as that administration survives due to the support given. This means that a state does not have to exercise policies or public powers in the territory of another state in order to result in the effective control over an area.
1.4. Personal authority and control
As set forth above, personal authority and control is conditioned on the use of force by state agents. The following subchapters will focus on the level of authority and control over a person that is necessary in order to establish a jurisdictional link between the state and an individual abroad. Because this thesis concentrates on the application of the ECHR during armed conflict, this chapter will merely focus on personal control through the acts of state agents that may occur during an armed conflict and only based on control over persons through a state’s military or security forces.
1.4.1. Use of force: detention and arrest
The Court in Al-Skeini emphasized that the decisive factor for finding personal authority and control
39 Ilascu and Others v. Moldova and Russia (App No 48787/99) ECtHR 8 July 2004, para. 1-3 and 19. 40
Ilascu and Others v. Moldova and Russia (App No 48787/99) ECtHR 8 July 2004, para. 312.
41 Ibid, para. 314. 42 Ibid, 315.
11 is the exercise of physical power and control over the person in question and, therefore, does not solely depend on the control exercised over buildings, aircrafts or ships in which individuals were held.44 It therefore depends on the level of control exercised over persons abroad which is the key issue for finding personal authority and control, and thus extraterritorial jurisdiction .45 The ECtHR has recognized the authority and control of state agents over individuals abroad when state agents arrest or detain a person abroad, given the physical control state agents exercise over the persons involved.46
In Öcalan v. Turkey, the applicant was arrested by Turkish security forces inside an aircraft in Nairobi and he was physically forced to return to Turkey.47 The Court concluded that directly after being handed over to the Turkish officials, the applicant was under the effective authority of Turkey and therefore brought within the jurisdiction of that state.48 According to the Court, jurisdiction occurred on the moment that: 'the applicant was physically forced to return to Turkey by Turkish
officials and was subject to their authority and control following his arrest and return to Turkey.'49 The Court has also acknowledged that extraterritorial jurisdiction can be established when a contracting party has authority and control over a person that is detained abroad, in a detention facility that is run by its own state agents. In the cases of Al-Saadoon as well as Al-Jedda, the Court concluded that the United Kingdom had effective control over the British detention facilities in Iraq, which effective control provided in the jurisdictional link between the United Kingdom and the detainees.50 The Court in Al-Saadoon considered that 'given the total and exclusive de facto, and
subsequently also de jure, control exercised by the UK authorities over the premises in question, the individuals detained there, including the applicants, were within the UK's jurisdiction'.51 This case concerned two Iraqi nationals who were detained in a British run detention facility in Iraq, awaiting their trial. They were arrested and detained on the suspicion of violence against coalition forces (of which the United Kingdom was a member), including the murders of two British soldiers. The British authorities decided that the criminal case would be transferred to Iraqi Criminal Courts. The
44
Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011, para 136.
45 K Da Costa The Extraterritorial Application of Selected Human Rights Treaties ( Martinus Nijhoff 2013), p. 165. 46 Öcalan v. Turkey, ECtHR (App. no. 46221/99) 12 March 2003; Al-Saadoon and Mufdhi v. United Kingdom, (App
No. 61498/08) ECtHR 4 October 2010, para. 41; Al-Jedda v. the United Kingdom (App No27021/08) ECtHR 7 July 2011, para. 85; Issa and Others v. Turkey, (App No 31821/96) ECtHR 16 November 2004; Pad and Others v. Turkey (App No 60167/00) ECtHR 28 June 2007.
47 Öcalan v. Turkey, ECtHR (App. no. 46221/99) 12 March 2003, para. 17. 48 Ibid, para. 91.
49
Rick Lawson, 'Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR, in A Buyse Margins of Conflict. The ECHR and Transitions to and from Armed Conflict (Intersentia 2011), p.57-76, p.64.
50 Al-Saadoon and Mufdhi v. United Kingdom, (App No. 61498/08) ECtHR 4 October 2010, para. 41; Al-Jedda v. the
United Kingdom (App No27021/08) ECtHR 7 July 2011, para. 85; these cases differentiate with the circumstances
put forward in the case of Ilascu (as examined in Chapter 1.3), since in that case the detention facility was not under the authority and control of Russian military agents, but under the control of the MRT.
12 applicants challenged this decision, claiming that there was a risk of being exposed to the death sentence. When their claim with the British authorities failed, the applicants filed a complaint with the ECtHR, which indicated to the United Kingdom that they should not transfer the applicants until further notice. However, the British government did not comply with the Courts request and
transferred the applicants to Iraqi custody the next day. The British government explained that it could not comply with the request of the Court, because the UN-mandate which authorised their role in arrest, detention and imprisonment tasks in Iraq was due to expire.52 The court concluded that the United Kingdom did have jurisdiction over the applicants based on the fact that it was an occupying power in Iraq.53 The detention facilities were established through the exercise of military force and the British forces exercised control and authority over the detained individuals, initially solely as a result of the use or threat of military force.54
A similar conclusion was made by the Court in Al-Jedda. In this case, jurisdiction was
established based on the fact that the detention facility was controlled exclusively by British forces and the decision to hold the applicant in internment was made by the British officer in command of the detention facility.55 These judgements seem to indicate that the jurisdictional link is established by the level of control that is exercised by the British military forces over persons. The physical custody over a person or the imprisonment of individuals seems to meet this requirement.
1.4.2. Use of force: targeting individuals
In addition to the circumstances examined above, a jurisdictional link has also been recognized by the ECtHR when the relatives of the applicants were killed by state agents. The cases of Issa and
Pad are relevant in this regard.
In the case of Issa, Turkish military forces carried out military operations in northern Iraq over a period of six weeks during which they allegedly killed Iraqi citizens.56 The Court decided that Turkey did not have jurisdiction over the individuals involved, because it was not proven beyond reasonable doubt that the Iraqi citizens were killed by the Turkish Military forces, based on the limited timeframe the military forces were on the territory of Iraq and the fact that they did not maintain any checkpoints or constant patrols in the area.57 However, the Court did establish that 'a
state may also be held accountable for violation of the Convention rights and freedoms of persons
52
Al-Saadoon and Mufdhi v. United Kingdom, (App No. 61498/08) ECtHR 4 October 2010, para. 23-16.
53 Ibid, para. 87 54 Ibid.
55 Al-Jedda v. the United Kingdom (App No27021/08) ECtHR 7 July 2011, para. 85. 56
Issa and Others v. Turkey (App No 31821/96) ECtHR 16 November 2004, para. 25.
57 Ibid, para. 75; Rick Lawson, 'Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict
under the ECHR, in Antoine Buyse, 'Margins of Conflict. The ECHR and Transitions to and from Armed Conflict', Intersentia 2011, p.57-76, p.65.
13
who are in the territory of another state but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully – in the latter state.'58
The Court legitimises its finding of jurisdiction by way of stating that: 'Accountability in such
situations stems from the fact that art. 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.'59
This decision indicates that if the applicants were able to prove beyond reasonable doubt that the Turkish military forces killed the Iraqi citizen, it could have amounted to the conduct falling within the jurisdiction of Turkey. This means that when an individual is taken into physical custody by foreign military forces and executed, authority and control over a person could also be
established.
Whether this may also be the case without the physical custody over a person, has been established in the case of Pad and Others v. Turkey.60 This case concerned Iranian nationals that
lived near the Turkish borders and were killed by Turkish military forces inside a helicopter.61 Turkey claimed that the Iranian nationals were attempting to cross the border illegally and did not dispute that they were killed by the Turkish military forces.62 Therefore, the Court stated that: 'in
the instant case, it was not disputed by the parties that the victims of the alleged events came within the jurisdiction of Turkey. (…) given that the Government had already admitted that the fire
discharged from the helicopters had caused the killing of the applicants' relatives who had been suspected of being terrorists'.63 This means that a jurisdictional link between the deaths of the Iranian citizens and the Turkish conduct can be established, even though the Turkish troops did not arrest or detain those individuals.64 Authority and control i.e. physical control over an individual, can therefore also be established when an individual is killed by the military forces of another state.
1.5. Exercising public powers
In the most recent cases before the ECtHR concerning extraterritorial jurisdiction, the cases of
Al-Skeini and Jaloud, the Court based its finding of jurisdiction on the fact that the United Kingdom
58 Issa and Others v. Turkey (App No 31821/96) ECtHR 16 November 2004, para. 71, 76-81. 59 Ibid, para. 73.
60 Pad and Others v. Turkey (App No 60167/00) ECtHR 28 June 2007; Rick Lawson, 'Really out of Sight? Issues of
Jurisdiction and Control in Situations of Armed Conflict under the ECHR, in Antoine Buyse, 'Margins of Conflict.
The ECHR and Transitions to and from Armed Conflict', Intersentia 2011, p.57-76, p.67.
61 Pad and Others v. Turkey (App No 60167/00) ECtHR 28 June 2007, para. 5-18. 62 Ibid, para. 21-25.
63
Ibid , para. 53-54.
64 Ibid, para. 52-55; Rick Lawson, 'Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed
Conflict under the ECHR, in Antoine Buyse, 'Margins of Conflict. The ECHR and Transitions to and from Armed
14 and the Netherlands respectively, exercised public powers in Iraq which were normally exercised by the Iraqi government.65 Hence, the ECtHR differs from its former conditions providing authority and control over a person and links the public powers argument to the authority and control over a person.
1.5.1. Personal or territorial
The public powers argument has been recognized in previous case law of the Court, although not exclusively linked to personal control. The Court in the Bankovic case recognizes effective control as a result of (among other conditions) a state exercising some or all of the public powers in another territory. 66 The relatives of five of the six applicants were killed, the sixth applicant was injured during the bombing of the radio and television station by a NATO forces’ aircraft.67 The Court argued that the Convention operates in an essentially regional context and particularly in the legal space of the contracting parties to the Convention.68 The Federal Republic of Yugoslavia (‘FRY’) did not fall within that legal space, partly since the FRY was not a contracting party to the
convention.69 According to the Court, the convention was not designed to be applicable throughout the world, even when it concerns the conduct of contracting parties.70
Even though no jurisdictional link was found, the Court did argue that the case-law of the Court demonstrates that extraterritorial jurisdiction can be recognized when a state exercises all or some of the public powers normally exercised by the Government of that territory.71 Since the public powers argument was applied under the paragraph concerning jurisdiction resulting from effective control over an area, the argument seems to be linked to that factual situation, rather than to the ‘authority and control over a person’ situation.72 This conclusion is strengthened by the fact that the Court in the Ilascu case, which concerned effective control over an area, partly followed the argumentation of the Court in the Bankovic case, when the Court recognized that effective control could be the result of a state that is prevented from exercising its authority in part of its territory, which is caused by military occupation by the military forces of another state.73
65 Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014; Al-Skeini and Others v. the United
Kingdom (App no 55721/07) ECtHR 7 July 2011.
66 Bankovic and Others v. Belgium and 16 Other Contracting States (App no 52207/99) ECtHR decision as to the
admissibility 12 December 2001, para. 9.
67 Ibid, para. 9-11. 68
Ibid, para. 80.
69 Ibid. 70 Ibid.
71 Ibid, para. 71; M Milanovic, 'Al-Skeini and Al-Jedda in Strasbourg', (2012) 23-1 European Journal of International
Law, p. 121-139, p. 128.
72 M Milanovic, 'Al-Skeini and Al-Jedda in Strasbourg', (2012) 23-1 European Journal of International Law, p.
121-139, p. 128.
15
1.5.2. Extent of the public powers exercised
The case of Al-Skeini concerned six applicants, of which five of the six applicants where relatives of deceased Iraqi nationals that were at the time of death in custody of British military forces, detained in a British run detention facility or shot dead as the intended target.74 The other applicant is the relative of a woman who was not in custody of or detained by the British military forces nor was she the intended target. The United Kingdom was at the time of the deaths part of the Multi-National Force which was created by the United Nations Security Council resolution 1511. The Coalition Provisional Authority (CPA) was established on 13 May 2003 for the temporary
governance of Iraq.75 The CPA was divided into regional areas, of which the South, including the city Basrah, was placed under the responsibility of the United Kingdom.76 The coalition forces had two main functions which entailed, in short, providing security over the area and providing support for the civil administration in Iraq.77
The Court concluded that the deaths of the Iraqi citizens fell within the jurisdiction of the United Kingdom, since the United Kingdom, along with the United States of America exercised some of the public powers normally to be performed by a sovereign government.78 This conclusion was based on the fact that the United Kingdom performed some of the public powers in the south east of Iraq, including the city of Basrah.79 The United Kingdom had, through its soldiers, engaged in security operations in Basrah during the period in question and therefore exercised authority and control over the individuals killed in the course of such security operations, providing in a jurisdictional link between the deceased and the United Kingdom for the purpose of article 1
ECHR.80 The decisive factor for finding a jurisdictional link in this case, seems to be the exercise of some or all of the public powers normally performed by the sovereign government.
The Court seems to have broadened the application of the ECHR extraterritorially, given that the third applicant was not detained by or in custody of British military forces nor was she an intended target.81 She was hit by gunfire exchanged between the British military and unknown
74 Al-Skeini and Others v. the United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 34-71. 75
Ibid, para. 12.
76 Ibid, para. 13; Between May 2003 and June 2004 the Coalition forces consisted of six divisions under the overall
command of US generals, each division was given command over a particular geographical area in Iraq, see Al-Skeini para. 20.
77
Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011.
78 Ibid, para. 149; C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application
NO 55721/07) Judgement of 7 July 2011' (2012) 61-1 International and Comparative Law Quarterly, pp. 201-312, p. 303.
79
Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 149.
80 Ibid, para 149-150.
81 Ibid, para. 45; C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application
16 gunmen.82 This seems to conflict with the criterion of physical control, for establishing personal authority and control over a person, given that she was only a ‘bystander’ and was not involved in the conflict at hand.83 However, this issue was not examined by the Court, since the jurisdictional link was established by the exercising of public powers.84 However, it can be concluded that the application of the public powers argument includes a wider range of circumstances.85
In the case of Jaloud, the military forces of the Netherlands participated in the Stabilization Force in Iraq (‘SFIR’) from July 2003 until March 2005.86 They were stationed in the province of Al-Muthanna, which was part of the Multinational Division South-East (‘MDSE’) under the
command of an officer of the armed forces of the United Kingdom.87 Whereas the United Kingdom was established to be an occupying power within the meaning of article 42 of the Hague
Regulations, this was not established of the Dutch presence in Iraq.88 Even though the Court did not establish that the Netherlands were an occupying power in Iraq, it did conclude that there was a jurisdictional link between the death of Jaloud and the conduct of the Dutch military forces in Iraq.89 According to the Court, the finding of the status of ‘occupying power’ within the meaning of article 42 of the Hague Regulations is not decisive for finding a jurisdictional link. Additionally, the Dutch government is not divested of its jurisdiction solely based on having accepted the operational control of the commander of MDSE, an officer from the United Kingdom.90 The Netherlands
retained full command over its military forces in Iraq.91 The Court continued this argumentation and stated that although the Dutch troops were stationed in an area where the SFIR forces were under the command of an officer of the United Kingdom, the Netherlands was responsible for providing security in that area and retained full command over its troops. The checkpoint where Mr Jaloud was killed was manned by personnel under the command and direct supervision of Dutch military agents and was set up in the execution of SFIR’s mission to restore conditions of stability and security. Therefore, the Court noted that the Netherlands exercised its jurisdiction within the limits of the SFIR mission and for the purpose of asserting authority and control over individuals passing
311.
82 Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 45.
83 C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application NO 55721/07)
Judgement of 7 July 2011' (2012) 61-1 International and Comparative Law Quarterly, pp. 201-312, p. 311.
84 Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 149-150.
85 C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application NO 55721/07)
Judgement of 7 July 2011' (2012) 61-1 International and Comparative Law Quarterly, pp. 201-312, p. 311.
86
Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014, para. 53.
87 Ibid.
88 See for the establishment of the UK as an occupying power Al-Skeini and others v. The United Kingdom (App no
55721/07) ECtHR 7 July 2011, para. 80; article 42 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907).
89 Jaloud v. the Netherlands (App No 47708/08) ECtHR 20 November 2014, para. 152. 90 Ibid, para.143.
17 through the checkpoint.92
When comparing the case of Al-Skeini with Jaloud, an important difference can be
distinguished. In both cases, the finding of a jurisdictional link was based on the exercising of some of the public powers normally exercised by the (local) government in Iraq. However, since the United Kingdom was established to be an occupying power in Iraq, within the meaning of article 42 of the Hague Regulations, unlike the Netherlands, the level of control (i.e. the public powers
exercised) is far lower in the circumstances of the latter state than the former.
18 2. Content of the extraterritorial obligations of contracting states during armed conflict Once jurisdiction has been established, the question arises as to which rights and obligations are applicable extraterritorially. When the wording of article 1 of the ECHR is followed, a contracting party to the convention has to secure to all persons the rights and freedoms under Section I of the Convention.93 In other words, when a state has jurisdiction, there is no difference in the rights and obligations that a state party has to secure within that jurisdiction, whether those rights and
obligations have to be applied extraterritorially or not. The cases of Al-Skeini and Jaloud seem to support this point of view, given that the Court recognized that in case of the finding of jurisdiction within the meaning of article 1 ECHR, the entire range of substantive rights set out in the
Convention and those additional Protocols it has ratified will be applicable.94 There is therefore no distinction between the rights that apply inside the territory of a contracting party or outside that state’s territory, provided that the state has jurisdiction.95However, the specific content of those rights may differentiate from situation to situation, due to the different circumstances of the case.96
This chapter will first examine the content of obligations that a contracting state may have when it acts outside its borders and when extraterritorial jurisdiction has been established (2.1).
Additionally, this chapter will specifically focus on article 2 (the right to life), article 5 (the right to freedom and security) ECHR (2.2), since these rights are of great importance during an armed conflict but the application of these rights may simultaneously conflict with applicable norms established under IHL .97
2.1. Content of the rights and obligations
Since the content of the extraterritorial rights and obligations under the Convention is not stipulated in the ECHR, the ECtHR’s case law explained in chapter 1 is once more relevant. With the decision in the case of Al-Skeini, some of the uncertainties that accompanied this subject have been resolved. But as will be explained below, this decision unfortunately also leaves some aspects concerning the extraterritorial application of the rights and obligations under the Convention untreated.
2.1.1. The rights and freedoms under the Convention can be divided and tailored
Whenever a state exercises control and authority over an individual through its state agents, and
93
Article 1 ECHR.
94 Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 137-138; Cyprus v.
Turkey (App No 25781/94) ECtHR 10 May 2001, para. 18, 76-77.
95 S Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on
Jurisdiction and What Jurisdiction Amounts to’, (2012) 25-4 Leiden Journal of International Law, p. 857-884, p. 878.
96 Ibid.
19 thus jurisdiction, the state has an obligation under article 1 ECHR to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of the individual.98 Therefore, the Conventions rights can be divided and tailored.99 The ECtHR overrules with this decision the previous prevailing concept as established in the Bankovic case.100 The latter decision specifically held that the rights under the Convention cannot be divided and tailored in accordance with the particular circumstances of the extraterritorial conduct.101 Therefore, the view of the Court regarding the extraterritorial applications of the rights under the Convention seems to have shifted immensely. The conclusion that the rights under the Convention can be divided and tailored refers to the content of the rights that are relevant in a particular situation, not to a division in positive and negative obligations.102 Taken into account that in order for positive obligations of a contracting state to arise, effective control is required.103 This can be concluded from the fact that in order for a state to be able to guarantee positive duties, authorities require to have knowledge of, and thus some form of control over alleged violations of rights guaranteed under the Convention.104
In other words, the rights that are applicable are those rights that arise in the specific circumstances of the case and of the extraterritorial conduct.
2.1.2. Direct and immediate link
The ECtHR has argued that the rights and obligations under the Convention that are applicable in the circumstances of the case, must be guaranteed by contracting states.105 Therefore, the state that acts on the territory of another state is not under the obligation to protect in that latter state’s entire territory the rights and obligations under the Convention. The ECtHR rather argues that in these instances, there has to be a direct and immediate link between the extraterritorial conduct of the contracting state and the alleged violation of the rights of an individual, in order for the Convention to provide in extraterritorial protection for civilians.106
This means that the application of the Convention extraterritorially is linked to the specific circumstances that fall within the jurisdiction of the former state. Depending the level of protection
98 Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 137; Jaloud v. the
Netherlands (App No 47708/08) ECtHR 20 November 2014, para 139.
99
Ibid.
100 Bankovic and Others v. Belgium and 16 Other Contracting States (App no 52207/99) ECtHR 12 December 2001. 101 Ibid, para. 75.
102 C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application NO 55721/07)
Judgement of 7 July 2011', (2012) 61-1 International and Comparative Law Quarterly, pp. 201-312, p. 307.
103 Osman v. the United Kingdom (App No 87/1997/871/1083) 28 October 1998, para 116. 104 Ibid.
105 Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, para. 138; Cyprus v. Turkey
(App No 25781/94) ECtHR 10 May 2001, para. 18, 76-77.
106 R. Lawson, Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights
in: F. Coomans and M.T. Kamminga, ‘Extraterritorial Application of Human Rights Treaties’, Antwerp 2004 Intersentia, p. 83- 124, p. 104.
20 that the state is obliged to offer, on the level of control a state has over an area or over specific individuals.107 The responsibility of a state is in any case engaged when state agents affect persons outside the territory of the contracting state.108 Then the question arises whether the rights and obligations under the Convention can be invoked by just anyone that is affected by the specific conduct of that state. Following the line of argumentation above, concerning the direct and immediate link, obligations under the Convention could merely arise regarding the person that is under the control of a state, through which a jurisdictional link could be established. As stated in the previous chapter, the Court in Al-Skeini has extended the applicable obligations under the
Convention on states when they act extraterritorially, where it concerned the bystander that had nothing to do with the shootings that took place in the village and was not a target for the military forces under the command of the United Kingdom.109 But since jurisdiction was a result of the United Kingdom exercising some or all of the public powers normally exercised by the Iraqi government, the content of these obligations could also be merely meant for circumstances where such public powers are exercised, therewith covering a wider range of circumstances.110
2.2. Extraterritorial application of the right to life and the right to freedom and security An obligation to respect and protect the right to life and the right to freedom and security
respectively can therefore fall under a state’s responsibility when acting extraterritorially if a direct and immediate link exists between the extraterritorial conduct of the contracting state and an alleged violation of the rights of an individual. The Convention is applicable in principle at all times (in times of peace as well as in times of armed conflict), within the jurisdiction of the contracting parties. The right to life and the right to liberty and security are guaranteed under article 2 and 5 respectively. The following subchapter will examine the content of both rights during armed conflict and possible limitations that may be imposed by contracting parties to the Convention during an armed conflict.
2.2.1. The right to life
Article 2 of the ECHR provides in the protection of the right to life. Under the right to life, any deprivation of life is prohibited, except when it results from the use of force which is no more than
107
R. Lawson, Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights in: F. Coomans and M.T. Kamminga, ‘Extraterritorial Application of Human Rights Treaties’, Antwerp 2004 Intersentia, p. 83- 124, p. 105.
108 Ibid. 109
C Mallory, 'European Court of Human Rights Al-Skeini and others v. United Kingdom (application NO 55721/07) Judgement of 7 July 2011', (2012) 61-1 International and Comparative Law Quarterly, pp. 201-312, p. 311;
Al-Skeini and others v. The United Kingdom (App no 55721/07) ECtHR 7 July 2011, 43-46.
21 absolutely necessary in defence of any person from unlawful violence (sub a), in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (sub b) or in action lawfully taken for the purpose of quelling a riot or insurrection (sub c).111 The principle of necessity is incorporated in the article (resulting from the use of force which is no more than absolutely necessary).112 The proportionality principle is not explicitly incorporated, but has been
acknowledged by the ECtHR in its case law, requiring a minimum use of force to achieve the lawful aim.113
The right to life can be divided into two different aspects. On the one hand a negative obligation for states to refrain from arbitrarily deprivation of life, on the other hand the positive obligation to investigate apparent unlawful killings.114 Additionally, the right to life also
encompasses a due diligence obligation with respect to the obligation to protect people from being subjected to the death penalty in other countries (for example in case of the extradition of a
person).115
2.2.2. The right to freedom and security
Under the right to liberty and security the internment of an individual may be legitimate when one of the six grounds as stipulated in article 5 (1) ECHR is fulfilled. These six grounds entail that detention is lawful when:
a. a person is convicted by a competent court;
b. detained for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him from committing an offence or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e. for the prevention of the spreading of infectious diseases;
f. a person is of unsound mind, alcoholics or drug addicts or vagrant;
g. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into
111
ECHR, article 2 (2).
112 N S Rodley ‘Integrity of the Person’ in: D Moeckli, S Shah & S Sivakumaran (eds.) International Human Rights
Law (OUP 2010, p. 209-231, p. 223.
113 S Hartridge, ‘The European Court of Human Right’s Engagement with International Humanitarian Law’ in: D. Jinks,
J.N. Maogoto, S, Solomon (ed), Applying international Humanitarian Law in Judicial and Quasi-Judicial Bodies,
International and Domestic Aspects (T.N.C. Asser Press 2014), p. 257-287, p. 280.
114 Ibid, p.228. 115 Ibid, p 229.
22 the country or of a person against whom action is being taken with a view to deportation or extradition.
Detention is arbitrarily when it is not necessary in the circumstances of the case and when the proportionality principle has not been taken into account.116
2.3. Application of the right to life and the right to freedom and security during armed conflict In circumstances concerning armed conflict, the application of the rights under the Convention may differentiate from the application of rights under normal circumstances. There are two reasons for the alteration of rights in situations of armed conflict. First, a state may derogate from specific rights under the Convention in case of a public emergence.117 Secondly, in circumstances involving an armed conflict, other norms may be applicable in addition to the applicable human rights
norms.118 Under article 32 and 41 of the Convention, the ECtHR is obliged to take into account, together with the context, any relevant rules of international law applicable in the relations between the parties while interpreting the rights guaranteed under the Convention. The jurisdiction of the court and the criteria for derogation under article 15 ECHR will be examined below.
How the application of the rights under the Convention may differentiate in times of war as opposed to ‘normal’ circumstances, will be examined in chapter 3. The case of Jaloud, concerning the obligation to investigate unlawful killings under article 2 ECHR and the case Al-Jedda,
concerning preventive detention, are relevant in this regard.
2.3.1. Derogation under article 15 ECHR
Under article 15 ECHR, a contracting state may derogate from specific rights. This article stipulates that the contracting parties to the convention: ‘may take measures derogating from its obligations
under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’ in times of
war or other public emergency threatening the life of the nation of a contracting party.119 The second paragraph of the above mentioned article provides in an exclusion of several articles of the Convention, in which a contracting party may not derogate its obligations.120 One of the exclusions made by this paragraph entails that contracting parties may not derogate from the right provided for under article 2 ECHR, i.e. the rights to life, except with respect to deaths resulting from lawful acts
116 S Shah ‘Administration Justice’ in: D Moeckli, S Shah & S Sivakumaran (eds.) International Human Rights Law
(OUP 2010, p.304-330, p. 308.
117 European Convention on the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213
UNTS 221, Article 15 (‘ECHR’).
118 ECHR, Article 32 and 41. 119 ECHR, Article 15. 120 ECHR article 15 (2).
23 of war.
The application of article 15 ECHR is more difficult in case a state acts extraterritorially, during an armed conflict that takes place outside its own territory. Article 15 ECHR is intended for situations in which a state is in time of war or other public emergency threatening the life of the nation. Therefore, the question arises whether an armed conflict that does not take place in the territory of the contacting party is nonetheless covered by those two conditions.121 The Court in
Bankovic has rejected this possibility and stated that it did not find any basis in order to accept that
Article 15 covers all war and public emergency situations in general, whether obtaining inside or outside the territory of the state.122 However, the Court also stated that the article “is to be read subject to the ‘jurisdiction’ limitations enumerated in Article 1”.123 Therefore, this argument can also be turned around, conditioning the application of article 15 ECHR on the jurisdiction of a state, therewith providing in a possibility for a state to derogate its obligations when acting abroad, when extraterritorial jurisdiction has been established.124
2.3.2. Jurisdiction of the court
The jurisdiction of the ECtHR is also relevant for the establishment of the applicability of the ECHR during armed conflict. One of the limitations to the jurisdiction of the ECtHR can be found in the articles 32 and 41 ECHR, which entails that the Court’s jurisdiction is limited to interpreting and applying the Convention and the awarding of just satisfaction in case of a violation which has not been awarded (appropriate) compensation on the national level.125 The interpretation by the Court of the rights and obligations guaranteed under the Convention is regulated by the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties (‘VCLT’).126 Based on article 31(3) of the VCLT, the Court has to take into account, together with the context, any relevant rules of international law applicable in the relations between the parties while interpreting treaty obligations.
121
F Naert International Law Aspects of the EU’s Security and Defence Policy, with a particular focus on the Law of Armed Conflict and Human Rights’ (Intersentia 2010), p. 572.
122 Bankovic and Others v. Belgium and 16 Other Contracting States (App no 52207/99) ECtHR 12 December 2001,
para. 62.
123
Ibid.
124 F Naert International Law Aspects of the EU’s Security and Defence Policy, with a particular focus on the Law of
Armed Conflict and Human Rights’ (Intersentia 2010), p. 578.
125 ECHR article 32 and 41; S Hartridge, The European Court of Human Right’s Engagement with International
Humanitarian Law in: D. Jinks, J.N. Maogoto, S, Solomon (ed), Applying international Humanitarian Law in
Judicial and Quasi-Judicial Bodies, International and Domestic Aspects, The Hague 2014 T.N.C. Asser Press, p.
257-287, p. 259.
24 The application of the rights and obligations under the ECHR during armed conflict can, as will be explained more extensively in the next chapter, under certain circumstances coincide with the application of humanitarian law. On that account, the Court requires to interpret the Convention rights and freedoms in such a way that it is consistent with and not contrary to IHL.127
127 S Hartridge, The European Court of Human Right’s Engagement with International Humanitarian Law in: D. Jinks,
J.N. Maogoto, S, Solomon (ed), Applying international Humanitarian Law in Judicial and Quasi-Judicial Bodies,
